A Primer on the Civil-Law System
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
A Primer on the
Civil-Law System
by
James G. Apple
Chief, Interjudicial Affairs Office
Federal Judicial Center
and
Robert P. Deyling
Judicial Fellow
Administrative Office of the U.S. Courts, 1994–1995
This publication has been prepared and is being published by the Federal
Judicial Center at the request of the International Judicial Relations Committee
of the Judicial Conference of the United States.
This Federal Judicial Center publication was undertaken in furtherance of the Center’s
statutory mission to conduct and stimulate research and development for the
improvement of judicial administration. The views expressed are those of the authors and
not necessarily those of the Federal Judicial Center.Contents
Acknowledgments v
Introduction 1
Part I: The History and Development of the Civil-Law System 3
In the Beginning: “All Roads Lead to Rome” 3
Medieval Developments in Italy 6
Canon Law and the Law Merchant 9
Intellectual Developments Leading to the Codification Process 12
The Codification Processes in France and Germany 15
The French Code 15
The German Code 16
The Codes of Chile and Brazil 17
The Development of the Role of Jurists in Modern Systems 19
Part II: The Civil-Law System As It Exists and Functions in the
Modern Era 23
The Public Law–Private Law Dichotomy 23
Court Structure 24
The Legal Process 26
Civil Procedure 26
Criminal Procedure 28
Appellate Procedure 29
Legal Actors: Tradition and Transition 29
Legal Scholars 29
The Legislature 30
Judges 30
Legal Education and Lawyers 30
Transition in the Civil-Law World 31
Part III: The Common Law and a Comparison of the Civil-Law and
Common-Law Systems 33
Origins of the Common-Law System 33
Jurists in the Common-Law System 34
Differences in the Two Systems 35
Conclusion 38
Bibliography 41
iiiAppendix A: Excerpts from the Institutes of Gaius 43 Appendix B: Excerpts from the French Code 47 Appendix C: Excerpts from the German Code 55 Appendix D: Comparison of a Similar Issue of Law Treated by a French Court and a German Court 63 iv A Primer on the Civil-Law System
Acknowledgments
The authors acknowledge the contributions of several seminal works on the
civil-law system and legal history that contributed to the preparation of this
treatise. Much of the factual material and some of the opinions and general-
izations about the development of the law in Europe were drawn from An
Introduction to European Legal History by Olivia F. Robinson, Thomas D.
Fergus, and William M. Gordon of the Department of Legal History at the
University of Glasgow, and from John P. Dawson’s Oracles of the Law. Much
of the material describing the modern structure and functions of the civil-law
system was derived from The Civil Law Tradition by John H. Merryman of
Stanford University and from Comparative Legal Traditions by Mary A.
Glendon, Michael W. Gordon, and Christopher Osakwe. Other valuable sources
were Comparative Law: Western European and Latin American Legal Systems,
by John H. Merryman and David S. Clark; and The Civil Law System, by Arthur
T. von Mehren and James R. Gordley. Addi tional publications consulted by the
authors in the course of the preparation of this manuscript appear in the
bibliography. The authors are indebted to all of these scholars.
vIntroduction
Civil law is the dominant legal tradition today in most of Europe, all of Central
and South America, parts of Asia and Africa, and even some discrete areas of
the common-law world (e.g., Louisiana, Quebec, and Puerto Rico). Public
international law and the law of the European Community are in large part the
product of persons trained in the civil-law tradition. Civil law is older, more
widely distributed, and in many ways more influential than the common law.
Despite the prominence of the civil-law tradition, judges and lawyers trained
in the common-law tradition tend to know little about either the history or
present-day operation of the civil law. Beyond the most basic generalities—e.g.,
the common law follows an “adversarial” model while civil law is more
“inquisitorial,” civil law is “code-based,” civil-law judges do not interpret the
law but instead follow predetermined legal rules—judges and lawyers from the
United States seldom have any deeper sense of the civil-law tradition.
This overview is designed for judges and lawyers who seek to expand their
knowledge of the civil-law tradition and who might wish to consider the civil-
law system as a source of legal reforms. The scope of this paper is necessarily
limited. Each civil-law country has developed its own distinct legal system that
draws on the rich history of the civil law, and it is not possible to discuss here
such variations in detail. Moreover, this discussion does not attempt, except in a
most general way, to deal with the substantive law of the civil-law systems,
which can differ markedly between individual countries and also from that of
common-law countries. Instead, it focuses on general features that distinguish
the civil-law tradition from the common-law tradition. Particular references are
made to the civil-law systems of France and Germany and to two systems in
Latin America, those of Chile and Brazil, because of their strong influence on
many other systems. Those who desire more comprehensive information should
consult the sources contained in the bibliography.
Understanding modern civil law requires an understanding of the history of
the civil law beginning with the Roman Empire. Therefore, the first section of
this treatise discusses civil-law history in some depth. It focuses on Roman law,
the adaptation of Roman law during the medieval period, the development of
canon law and the law merchant, and the history of codification in Europe. The
second section reviews the basic features of the modern-day civil-law tradition,
including a summary of the structure of the courts and the adjudication process,
as well as the roles of judges, lawyers, and scholars. Finally, the commentary
1concludes with a discussion contrasting the civil-law and common-law traditions. 2 A Primer on the Civil-Law System
Part I:
The History and Development of the
Civil-Law System
In the Beginning: “All Roads Lead to Rome”
To understand the different civil-law systems as they exist today in European
and Latin American countries and elsewhere, one must necessarily begin in
antiquity, because the civil law, in all of its variations, has as its bedrock the
written law and legal institutions of Rome. Its very name derives from the jus
civile, the civil law of the Roman Republic and the Roman Empire.
Jurists—those persons “learned in the law,” or who could be described as
legal experts—made fundamental contributions to the development of the
Roman legal system.
The civil-law system had its origins in the Roman Republic, before the
beginning of the Empire, in the second century B.C. By the end of the Republic,
in 27 B.C., a body of legal experts, or jurists, had gained prominence within the
legal system, separate and apart from the courts of law (the term jurist will be
used throughout this discussion to mean a “legal expert” rather than only a
judge). These jurists were men from the upper classes of Roman society,
interested in the law and in providing counsel about the law as a public service.
They provided advice to parties to litigation, to the lay judiciary who presided at
trials and judged the facts of a case, and to legal magistrates who instructed the
lay judges on issues, procedures, and remedies available in particular cases.
Roman jurists were largely a product of the success of the Roman Empire.
Expansion of the Empire led to increased trade with conquered territories and
with distant lands with which Rome came into contact. The acquisition of
territories brought new people into Rome and other cities of the Empire. These
persons did not come under the traditional jus civile applicable to Roman
citizens, but were nevertheless important to the continued success of the Empire.
Such developments created the need for a private law regime to determine and
guide relationships between citizens and noncitizens. In this atmosphere, and to
meet such needs, the Roman jurist came into being and created for himself a
unique role, primarily in the classical period from 150 B.C. to 250 A.D.
Another reason for the development of the Roman jurist related to the nature
of the Roman judicial system and its method of disposition of cases. There were
3two types of civil judges: the magistrate, or praetor, and the judge for the trial,
or judex. This judiciary was nonprofessional. The praetors and judices seldom
had any legal training.
The judicial capacity of the praetor, elected for a one-year term, was limited
because his duties consisted of conducting what a modern lawyer would call a
pretrial hearing between prospective litigants to define the issues of the
controversy. The praetor’s source of power was the control of the remedies
available to the litigants. The praetors’ edicts, which were pronouncements
about the law, became a primary source of private law, legislation being only a
secondary source.
The judex, on the other hand, filled the traditional role of judge during the
trial. His appointment was even more limited than that of the praetor. The judex
was selected on a strictly ad hoc basis by the litigants for the purpose of
presiding over their trial, and then given authority by the praetor to decide only
that case. Both praetors and judices needed competent legal advice. They turned
to the jurists for that counsel.
Jurists in Rome were not government officers in the modern sense of that
phrase, since they had no official powers. Rather, their activities constituted a
form of public service, the rewards of which were influence and popularity.
They did not take charge of cases or control the course of litigation through the
courts. They did not charge for their services and they received no pay from the
state, a situation that emphasized the pure public nature of their service. They
were, perhaps, the first pro bono lawyers.
In addition to giving advice in individual cases, the jurists assisted the chief
praetor (known simply as the Praetor) in drafting the Edict, an annual public
proclamation made by the Praetor to state the principles by which he intended to
administer his office. The Edict became particularly important for the
development of the equity law of Rome, the jus gentium, which applied to those
persons who could not be classified as indigenous Romans.
Jurists responded to specific questions of law in a document known as a
responsa. The responsa was prepared for both praetors and judices, frequently
using the device of the interpretatio, in which specific statutory phrases served
as the basis for an opinion.
The jurists thus fulfilled two functions as legal advisers. First, they provided
written technical advice to judges and others about the state of the law and
interpretation of textual material, such as from the Twelve Tables (an early
statement of existing law, circa 450 B.C.) or the Edict. Second, they were almost
solely responsible, through their responsa, for the development of a
comprehensive jurisprudence, independent of judicial decisions, to meet the
continuing and changing demands of an increasingly pluralistic society.
The short-term, nonprofessional character of the Roman judiciary and its
method of case disposal produced another result, important for the later de-
4 A Primer on the Civil-Law Systemvelopment of civil-law systems: the lack of regard for the value of decisions in
individual cases. Since the praetor was appointed for only one year and played a
limited role in the resolution of cases, his decisions and rulings in particular
cases were not accorded any particular weight or significance. Likewise, there
was little respect accorded the decisions of the judex. The judex was appointed
to decide only a particular case. The practice of having, in effect, two judges in
every case, with the judex selected only for the particular case, represented a
split in the judicial process. There was no continuity in litigation, and no chance
for the development of legal principles among the various cases presented for
resolution. A judicial decision—involving actions by two separate judicial
officials—resolved an individual case, and that was the end of the matter.
Thus judicial decisions were never accorded any importance in the Roman
legal system. The eminent Roman jurist Gaius (see infra page 6) didn’t
recognize judicial decisions as a basis of Roman law in the preamble to his
Institutes, written in the second century A.D. And in the sixth century the
Emperor Justinian drove the final nail in the coffin of Roman judicial precedent
(and judicial precedent in later systems as well) in the encyclopedic work
commissioned by him, the Corpus Juris Civilis, with the dictum “non exemplis
sed legibus judicandum est” (“decisions should be rendered in accordance, not
with examples, but with the law”).1 The resulting derogation of the value of
individual decisions in the judicial process elevated the importance of the jurists
and their written opinions. The role of jurists came to be preeminent in classical
Rome, to such an extent that it could be validly argued that the Roman private
law system was entirely dependent on them.
The practice of the Praetor in issuing the annual Edict at the beginning of his
one-year term evolved into merely a reissuance of the one for the previous office
holder, with such changes and additions as were desired by the newly elected
Praetor. The result was an ever-lengthening document of uneven texture and
content. This practice ended during the reign of the Emperor Hadrian (117–138
A.D.), causing the jurists to turn to a new form of legal writing: the treatise,
which covered specific aspects of Roman law.
Another practice that helped elevate the role of jurists was Caesar Augustus’s
practice of “patenting” jurists, by which certain jurists were singled out for
recognition. By such recognition the opinions of the patented jurists were
accorded special significance and weight. Patented jurists eventually acquired
the power of rule making, and their opinions were binding even on the emperor
because they had the “force of law.” The prestige and importance of the work of
1. John P. Dawson, Oracles of the Law 103, 123 (1968); see The Institutes of Gaius, Book One,
para. 2 (William M. Gordon & Olivia F. Robinson trans., 1988); Great Jurists of the World at xxvii
(MacDonnell & Manson eds., 1968).
The History and Development of the Civil-Law System 5these Roman jurists became so great that they assumed the role of imperial
advisers.
Roman law—particularly the written works of these later jurists—had an
important influence on history. The written law of Rome had evolved from
responsa to the legal treatises prepared by the jurists, or jurisconsults, as they
came to be called. The law underwent further evolution in later periods of the
Empire, culminating in a comprehensive statement of private law prepared by
the jurist Gaius in the latter half of the second century A.D. Gaius’s Institutes
were an extensive collection of legal principles and rules covering matters
ranging from the rights of citizenship and the manumission of slaves to the
preservation of estates and the rules of intestate succession. The Institutes could
be analogized to modern “hornbooks,” in that they were elementary discussions
of Roman law designed to educate students, as well as assist practitioners in the
resolution of issues in a particular case. An excerpt from the Institutes is
reproduced in Appendix A.
In the sixth century, the Emperor Justinian ordered the preparation of an
even more comprehensive manuscript covering all aspects of Roman law. The
Corpus Juris Civilis included not only a refinement of Gaius’s Institutes, but the
Digest (writings of classical jurists), the Code (early imperial legislation), and
the Novels (Justinian’s legislation). The Corpus Juris Civilis provided a rich
store of legal ideas for contemporary and later students and scholars of the law.
It brought together legal treatises and principles of law reflecting diverse
viewpoints and arguments. As will be seen later in this discussion, the Corpus
Juris Civilis, particularly the refined Institutes, became the essential building
block for the system of law known popularly as the civil-law system, supplying
many of its substantive provisions.
Medieval Developments in Italy
From the eleventh to the fifteenth centuries, northern Italy witnessed the rise of a
jurist class almost as prominent and significant as its Roman predecessor.
During this time the Italian peninsula experienced the rise of Italian city-states
and increased commerce and trade between them. These changes were in some
ways similar to the changes that occurred in Rome during the classical period.
They created the necessity for some system of law to fulfill both the commercial
and social needs of the populace. The legal system had to expand beyond local
custom and those vestiges of Roman imperial law that were part of whatever
local legal system existed. As in Rome, jurists came into being to fill this void;
they are now known as the “glossators of Bologna.”
Glossators and their work were significantly different from their earlier
Roman counterparts. The purpose of the glossators was not to develop new
principles, rules, and procedures to meet the challenges of their particular age, as
6 A Primer on the Civil-Law Systemhad occurred during the early stages of the Roman Empire. Instead, glossators
revived the Corpus Juris Civilis as a complete system of private law brought
intact from the final period of the Empire and adapted the Roman system to the
exigencies of medieval Italy. Rather than create law as the Roman jurists did,
the glossators interpreted textual material from the Corpus Juris Civilis and
disseminated those interpretations to other scholars, law students, and lay
judges.
A second difference, important to the development of the civil-law system,
was the nature of the jurists themselves. In Rome, jurists were private, upper-
class citizens performing a public service without pay. In medieval Italy they
were primarily teachers, members of the law faculties of the universities, drawn
not from the nobility but from the general public. They generally carried the title
of doctor. These legal scholars became the midwives in the birth of a new
system of law for an emerging Europe.
While the basis for the opinions of early Roman jurists is not readily apparent
from their works, it is clear that they were case oriented and not dedicated to
building a system of law. In contrast, the Italian glossators emphasized system
building and logical form, with Corpus Juris Civilis serving as the basis for
construction of legal doctrine. Their basic technique was the “gloss,” an
interpretation or addition to the text of the Corpus Juris Civilis, first made
between the lines and later in the margins. They also used some of the substance
and argumentative techniques of medieval theology. When the Corpus Juris
Civilis and theological doctrine could not supply them with the necessary
rationale for their opinions, they turned to local custom to fill the void and
incorporated it into the system. The reliance on custom was a significant
contribution of these jurists, since there is little evidence that Roman jurists
appreciated custom as a source of law or took local custom into consideration
when preparing their responsa. Significantly, Gaius made no mention of custom
in Book One of his Institutes when he listed the bases of Roman law.
In some respects, however, there is a close resemblance between the Italian
glossators and Roman jurists. Both provided much-needed advice to the
untrained lay judges of the day, especially on difficult questions of law. The
glossators developed the practice of preparing short legal treatises (summae),
which had at least a superficial resemblance to the responsa of Roman jurists.
They also engaged in their activities as “law finders” or “law givers” without
any specific grant of political or civil authority (and possibly without
remuneration since they were paid members of the law faculties). In addition,
the glossators’ summae evolved into complete statements of private law, similar
to some of the work of the late-period Roman jurists. The “Great Gloss” of the
leading glossator of the period, Accursius, who wrote his classic of medieval
legal literature from 1220 to 1260, can be compared to the Institutes of Gaius
and even Justinian’s Corpus Juris C i v i l i s as an attempt to create a
The History and Development of the Civil-Law System 7comprehensive statement of the law. The Accursian Gloss totaled over 96,000
commentaries to the entire text of the Corpus Juris Civilis. Finally, the medieval
Italian glossators, like the Roman jurists, acquired great prestige and
contemporary influence.
The abiding influence of the Italian glossators and those who followed—the
so-called post-glossators and commentators who further developed and refined
legal doctrine under the Corpus Juris Civilis—cannot be underestimated. By the
middle of the thirteenth century they had not only created law faculties in the
universities, but also developed a systematic method of teaching law and a
definitive textbook for instruction. They not only paved the way for the
reception of Roman law into modern Italy, they were the primary cause for its
reception into the modern legal systems in Germany, France, Spain,
Switzerland, and other European countries.
The glossators were particularly influential because they were law professors
associated with the great universities of medieval Italy, which were the first true
universities of Europe and had the first law faculties. The universities employed
the glossators as masters who educated students from many parts of Europe. The
original glossators were located at the University of Bologna, where the first law
school was established. A city of great influence in the medieval world, Bologna
was not only a major commercial city in Italy, but was also located at the
crossroads of major trade routes. Graduates carried the system of the glossators
to their home countries and influenced the development of local legal systems.
The influence of the Italian law faculties was especially strong in Spain.
Spanish law students attended the University of Bologna in the early part of the
twelfth century, and a university in Salamanca, Spain, was later established
under the influence of the one in Palencia, Italy. By 1346 the influx of students
from Spain was so great at Bologna that a Spanish college was set up within the
university.
The reception of Roman law into Spain, primarily law from the Corpus Juris
Civilis as refined by the Italian glossators and carried home by Spanish law
students and scholars, resulted in the preparation of a comprehensive Spanish
digest, the Codigo de Las Siete Partidas (The Code of the Seven Parts of the
Law). The digest, which used Roman law as its primary source, was prepared by
the monarch Alfonso the Learned in the latter part of the thirteenth century. This
monumental work was the foundation of Spanish private law until 1889, almost
500 years later, when it was replaced by a code that is still in force, the Codigo
Civil (Civil Code). The Codigo de Las Siete Partidas is of particular importance
to the legal systems of Central and South America. It served as the basis for the
reception of Roman law into those regions through the exploits of the Spanish
conquistadors and the colonization efforts that followed them.
8 A Primer on the Civil-Law SystemCanon Law and the Law Merchant
Italian law, which influenced the development of law in other European
countries, was derived from two sources: Roman law as incorporated in Jus-
tinian’s Corpus Juris Civilis, and customary (local) law. Two developments
occurred in the medieval period that greatly affected the content of the
substantive law of the civil-law systems: (1) the creation of a comprehensive
canon or ecclesiastical law by the Roman Catholic Church, and (2) the maturing
of a law merchant, or law covering commercial transactions, as the result of the
growth of commercial classes and expansion of commercial activities in
European cities and regions.
Throughout Europe, from the twelfth through the sixteenth century, a series
of ecclesiastical courts evolved within the Roman church. These courts had a
relatively uniform structure, systematic management, and an educated staff of
judges trained and skilled in applying a canon law that was primarily concerned
with the administration of the church and its rules. This canon law had been
developing since the eleventh century, when the Bishop of Worms (Germany)
collected scattered rules and regulations of the church into a series of twenty
books known as his Decretum. From 1130 to 1150, an Italian ecclesiastical
jurist, Gratian, along with others produced the Concordia Discordantium
Canonum, a monumental work that became the basis for almost all canon law.
This extensive tract was divided into three parts, anteceding the divisions of
some of the early legal codes of European states in the post-medieval period: (1)
the nature and sources of law and ecclesiastical offices and conduct; (2) clerical
behavior, penal law and procedure, church property, religious orders, marriage,
and penance; and (3) sacraments and church doctrine.
Because of the pervasive influence of the church in almost all aspects of
medieval European life, the influence of canon law was significant. Like its
secular counterpart of the period, canon law was characterized by systematic
expositions of the law and scholarly writings about it that formed the bases for
the decisions of the ecclesiastical courts and guidance for church officials.
Reliance on scholarly collections of rules and principles of law became a norm
for developing legal systems in Europe.
The procedures used in the ecclesiastical courts also had an influence on the
secular courts of medieval Europe. Feudal courts often preferred trial by battle
or ordeal. Ecclesiastical courts developed a reasoned system that involved the
reception and consideration of documentary evidence and witness testimony, use
of qualified notaries to record proceedings, legal arguments by parties to a case
on points of law, and decisions by canonical judges. By embracing such
procedures the church made a significant contribution to the role of orderly and
systematic methods for the conduct of court proceedings and dispute resolution.
The History and Development of the Civil-Law System 9The development in medieval Europe of the law merchant resulted from
commercial developments on the Italian peninsula and in other parts of Europe.
These developments included (1) the creation and expansion of commercial
relations between Italian city-states and between the city-states and other urban
centers outside Italy; (2) the growth in maritime commercial activities and the
necessity for rules and regulations to govern that commerce; (3) the rise in the
number of fairs and markets throughout Europe and the need to regulate
commercial transactions in such settings; and (4) the rise of associations of
merchants in commercial centers created for purposes of safety of goods in
transit, financial security, and speedy resolution of commercial disputes.
The organization of merchants, seafarers, craftsmen, and traders into as-
sociations and guilds formed a community of institutions that followed local
custom and practice, which in turn provided substance for the body of
commercial law that followed. The law merchant also had a Roman law el-
ement, because Roman private law had addressed such commercial matters as
negotiable instruments and contracts. However, there were significant variations
among the commercial laws of different cities and regions. Uniformity of rules
throughout Europe was distinctly not a characteristic of the law merchant.
Because of the ease and relatively inexpensive nature of transport by sea
(compared to that by land) and the consequent increase in its frequency during
the economic revival on the Italian peninsula in the eleventh and twelfth
centuries, the practice of codifying the rules, practices, and customs of sea
transport became common. Capitulare navium (Shipping Rules) were first
published in Venice in 1205 and republished in expanded form as the Statuta et
Ordinamenta super Navibus (Statutes and Regulations on Shipping) in 1255.
This group of rules and regulations became the maritime code preferred for ports
in the Adriatic Sea. In the Kingdom of Naples, the preparation of a maritime
code, ultimately consisting of sixty-six chapters in both Latin and Italian, began
in the thirteenth century.
A vast assortment of important customs relating to commercial practices for
sea transport developed in the Italian cities of Genoa and Pisa, two important
commercial centers of the medieval world. These customs greatly influenced the
compilation of the most important maritime code of the period, the Consolato
Del Mare (Consulate of the Sea). Compiled in Barcelona, Spain, and containing
over 330 articles, the Consolato Del Mare covered such maritime matters as
construction of vessels, circumstances requiring assistance to other vessels in
distress, general average (a maritime principle for allocating damages),
employment of pilots, and privateering. One article, for example, established the
legal requirement of a ship to carry a cat to deal with the rats on board. This
influential code was translated from the original Catalan (an early western
Mediterranean language) into Latin, French, and Italian and was circulated in
the early sixteenth century throughout Europe.
10 A Primer on the Civil-Law SystemOn land as on sea, increased intercity commerce and trade led to the creation
of rules to deal with trade practices and disputes. The land version of the law
merchant, based on the customary practices of traders, had its origin in the
markets and fairs held on a comparatively regular basis throughout Europe even
before the beginning of the second millennium. Markets were local events held
weekly or monthly during the year, while fairs were more regional in nature and
held once a year. Extant accounts describe fairs as early as the eighth and ninth
centuries in France.
The frequency and extent of markets and fairs required some mechanism for
keeping the peace and for dispute resolution. Informal courts for these events
were created to fulfill that need. In England these courts were known as
“piepowder courts,” the description being a reference to the feet of peddlers and
traders, dusty from their travels from fair to fair.2 Because the right to conduct a
market or fair arose from a grant of authority from a king or prince, the
piepowder and similar courts elsewhere in Europe evolved into official
commercial courts operating under the authority of the reigning monarch.
Another social phenomena of the era giving impetus to the legal regulation of
commerce was the creation and authority of craft guilds within a city or region
to regulate and control a particular trade. Municipal commercial courts emerged
to handle mercantile cases. The power of the guilds to regulate commerce within
a particular craft often resulted in the adoption of municipal statutes governing
organization, internal policies, and commercial practices of a particular craft.
These municipal statutes were usually based on the customs of the craft guilds
that had been periodically recorded, and they became a source of local
commercial law.
Other than the municipal statutes designed to serve guilds and guild
members, extensive codification of commercial rules, practices, and custom does
not seem to have been a practice of the land version of the law merchant, in
contrast to the maritime version. Use of precedent may have been a more
common feature of land-based transactions. In Frankfurt, Germany, a book of
precedents was maintained to assist in the arbitration and resolution of
commercial disputes.
The establishment of special commercial courts to deal with trade disputes
and trade matters—both in the cities for the benefit of guilds and at markets and
fairs—paved the way for the modern practice in some European countries of
separating commercial law and procedure from other parts of the law.
Commercial law and procedure were assigned to a special commercial code, and
special commercial courts were created to administer the commercial law.
2. Olivia F. Robinson et al., An Introduction to European Legal History 166 (1985). The term
“piepowder” is an English derivative of the French phrase “pied poudres” (dusty feet).
The History and Development of the Civil-Law System 11Thus the main river of substantive law that developed in medieval Europe
and became the basis of modern European law was the result of the convergence
of four different streams or tributaries of law. The main tributary was Roman
law, primarily contained in Justinian’s Corpus Juris Civilis, as modified and
elaborated by the glossators and commentators in the Italian universities. The
other tributaries were customary (local) law, canon law, and the law merchant.
Together they came to be known as the jus commune (or “common
law”—different from the common law of England), common to a whole
kingdom and the peoples within it. The jus commune as it was established in
France, Spain, and other European monarchies was characterized by both
continuity and similarity of attitudes about the law (e.g., a bias in favor of
systems and codification).
Intellectual Developments Leading to the
Codification Process
The practice of relying on various written forms of law, including scholarly
commentaries, doctrinal treatises, and glosses on compilations of legal prin-
ciples, for the creation of a legal system was well established throughout Europe
in the fourteenth and fifteenth centuries. The formal, comprehensive codification
of an entire body of law of the type characteristic of modern civil-law systems
began primarily in France and Germany. Before discussing the codification
process, however, it is necessary to examine briefly the influence of three
intellectual movements of the period: “humanism,” which grew out of the
Renaissance; the “natural law” school, which followed humanism; and finally,
the Enlightenment.
Humanism was an intellectual movement that had its origins in sixteenth
century France, a time and place of great upheaval. There was a ferment of
ideas, politics, culture, religion, and commerce. In politics and religion the
decline in the secular influence of the Roman Catholic Church and the waning of
the power and authority of the Holy Roman Empire were accompanied by the
birth of the concept of the nation-state and an emphasis on strong, central
governments. These developments culminated in the creation of the modern
European system of states by the signing of the Treaty of Westphalia in 1648,
which ended the Thirty Years War and, with it, the Holy Roman Empire. With
its emphasis on rational thought and the potential for individual achievement,
humanism was inspired by the culture of antiquity—primarily Greece, and to a
lesser extent Rome. It encouraged scholarly examination of law, particularly the
nature and function of law, and in the process the science of jurisprudence was
founded. The school of natural law was an outgrowth of humanism.
The origins of natural law are several, but the writings of Hugo de Groot
(better known as Grotius) stand out as the real starting point in the development
12 A Primer on the Civil-Law Systemof the natural law school. Although Grotius (1583–1645), a Dutchman, is better
known as the father of public international law, he attempted, through several
seminal writings, especially De Jure Belli ac Pacis (On the Law of War and
Peace), to develop universal concepts of law that transcended national
boundaries and were not dependent on any one legal system. He advocated ideas
such as law being based on human experiences and desires, particularly the
desire for an orderly and peaceful society and the maintenance of that society
based on reason. He argued for a rational approach to the structure of law and
the resolution of disputes. He supported the systematic arrangement of legal
materials, such as the treatment of property and obligations, and of specific rules
within those systematic arrangements. In sum, “Grotius was . . . a starting point
for the codifying lawyers of the Enlightenment and a support for an increasingly
mercantile society, in which good order and a clearly defined system of rules of
property and obligation were seen as highly desirable.” 3
Later jurisprudential writers influenced the development of the civil-law and
the codification process. Samuel Pufendorf and Christopher Wolff in Germany
attempted to build a legal system using the scientific methods of Galileo and
Descartes. This approach was characterized by the assertion of axioms from
which particular rules were logically deduced and then tested by experience and
observation. Scholars in other countries employed less rigorous techniques, but
the general approach was the same. In his attempts to build a complete and
rational system of law, and to promote law as a “science,” Pufendorf was a
particularly influential jurist, not only in Germany but throughout Europe. The
practice in modern codes of including introductory articles stating the general
principles of law that provide the framework for the subsequent sections can be
attributed to his work and influence.
The similarity of approach of the natural law scholars led to the conclusion in
one legal history that “codification in the sense of a rationally organized
statement of the whole field of law (or of all private law) was only possible after
the work of the natural lawyers.” 4 Of course these scholars had much legal
tradition with which to work, including Justinian’s Institutes, the glosses of the
Italian glossators, the commentaries of the post-glossator period, the collections
of ecclesiastical principles that became canon law, and the compilation of
commercial customs, rules, and regulations into various manifestations of the
law merchant.
The intellectual and social turmoil of the fifteenth, sixteenth, and seventeenth
centuries culminated in the eighteenth century in what has come to be known as
the Enlightenment. This intellectual movement included the French Revolution
and contained the near origins of the modern European codes. The
3. Id. at 361.
4. Id. at 416.
The History and Development of the Civil-Law System 13Enlightenment was based on a belief in the fundamental importance of reason as
a liberating force in intellectual life and in how society was organized, a belief
that grew out of the precepts of the natural law school. In Europe the effects and
influence of the Enlightenment provided the final stimulation for the creation of
the modern comprehensive codes of the different European states. Legal
philosophy, influenced by social philosophy, encouraged legal reform, including
new arrangements of legal topics within the unified system. Justinian’s Institutes
offered a convenient starting point for the codification process, because it
provided a rational statement of the legal principles and rules on almost the
entire range of subjects of private law and was a shared tradition in almost all
European legal systems. Finally, the egalitarian ideals of the age required that
citizens be knowledgeable on matters of law, so that each citizen could know
and understand his or her rights and duties under the law. These ideals in turn
encouraged simplification of the rules within a particular code, as well as
comprehensive coverage.
Although the codification process ultimately affected all European states to
one degree or another (with the exception of England), the leaders in the
codification process were France and Germany. Space limitations prevent
commentaries on the different codes; however, it is appropriate to examine
briefly the codification processes of France and Germany as examples for the
European legal systems, and those of two Latin American countries as ex-
emplary of the process in the New World.
The Codification Processes in France and
Germany
Codification in the sixteenth century differed from the codification process
during the Enlightenment and post-Enlightenment periods of the eighteenth and
nineteenth centuries. The former was “codification as a restatement of the law”
while the latter involved “a rationally organized statement of the whole field of
law.” In discussing the later codification processes, an appropriate starting point
is France, where Napoleon initiated a codification process at the beginning of
the nineteenth century. Not only was Napoleon responsible for the creation of
the modern French code, but he was also responsible for its dissemination to and
reception in the countries conquered by his armies.5
5. Napoleon regarded the creation of the Code Civil as his greatest achievement, overshadowing
even his great military victories. During his exile on St. Helena he remarked, “My true glory is not
that I have won forty battles. Waterloo will blow away the memory of these victories. What nothing
can blow away and will live eternally is my Civil Code.” Jean Louis Bergel, Principal Features and
Methods of Codification, 48 La. L. Rev. 1073, 1078–79 (1988), and Henri Mazeaud et al., Leçons de
droit civil, no. 45 (8th ed. 1986).
14 A Primer on the Civil-Law SystemThe French Code
In 1800, Napoleon appointed four senior practitioners of law to develop a
comprehensive legal code. These four practitioners were experienced jurists who
had studied Grotius, Pufendorf, and the other great writers of the natural law
school. The commission held 102 sessions, all in the relatively short period of
four years, devoted to drafting the code. The final product was presented to and
promptly passed by the French legislative body. This code, officially designated
the Code Civil des Français, was issued in 1804 in the form of three books with
2,281 articles. Later it came to be known as the Code Napoléon, but in its
present form is called simply the Code Civil.
The following is the basic structure of the Code Civil:
• Six articles at the beginning of the first book announce general principles
of law, including the publication, effects, and application of the law.
• Subsequent titles in Book I (articles 7–515) deal with civil rights and the
status of persons, and with marriage, divorce, and paternity.
• Book II (articles 516–710) covers real and personal property, and the
ownership and rights relating to such property.
• Book III (articles 711–2281) contains provisions on rights of succession,
contracts, and obligations (the law of obligations covers general
principles of obligations, as well as specific contracts, quasi-contracts,
delict (tort), security rights, and property rights in marriage).
The basic structure of the code reflects the influence of Justinian’s Corpus
Juris Civilis, while the overall design also conforms to the Declaration of the
Rights of Man produced during the French Revolution. The language is simple
and clear, since it was designed to be understood by every citizen. It does not
deal with procedure, commercial law, or criminal law; those three areas were
covered by codes developed later and separately.
The Code Civil has been amended and supplemented by later legislation, but
has never been completely revised. Because of the simplicity of some of the
articles, an extensive body of explanatory case law has developed and is used in
court opinions and judgments. A section of the Code Civil is contained in
Appendix B.
The German Code
Modern Germany ended up with a code that was largely the product of
codification processes in three Germanic states: Bavaria, Prussia, and Austria.
The three codification processes took place in the eighteenth century and
involved the work of commissions made up of legal scholars. The modern code
in Germany, still in effect, resulted from the creation of a commission by statute
in 1873 to codify German civil law. The result was a comprehensive code,
known as the Bürgerliches Gesetzbuch, or BGB, approved in 1896 and put into
The History and Development of the Civil-Law System 15effect on January 1, 1900. The BGB contains five books, to which various legal
subjects are assigned:
• Book I—General parts, including natural and juristic persons, the
definition of things, classification of legal acts, and prescriptive periods.
• Book II—The law of obligations, including creation and discharge of
obligations, contracts, and the law of delict.
• Book III—The law of real and personal property, including the
ownership and possession of property and servitudes on property and
securities.
• Book IV—Family law, including marriage and other relationships within
the family.
• Book V—The law of succession, including hereditary succession and the
rights of heirs, wills, settlements, and requirements of proof relating to
inheritance.
Sections of the German code appear in Appendix C.
The Codes of Chile and Brazil
Of particular significance to U.S. judges and lawyers are the civil-law systems in
Latin American countries, given their proximity and “American” culture, and
the prospect of broader trade and economic relations among the countries of the
hemisphere. Spanish law was responsible for the reception of Roman law in
Central and South America through the colonizing activities of the
conquistadors and those who followed them. This is true even for Brazil, once a
colony of Portugal, which was in turn under the control of Spain from 1580 to
1640, a critical time of colonization.
Legal developments in North America also influenced Latin American legal
systems, primarily in the area of constitutional theory and practice and the
structure of government. Many Latin American countries absorbed the ideas and
principles of constitutional government promulgated during the American
Revolution and adapted them for their constitutions and public law. But the
private law and many of the characteristics of the different systems remained
European, sometimes, in the words of one observer, “more European than the
Europeans themselves.” Thus the content of civil, commercial, and procedural
codes, legal education, the structure of the legal profession, the influence of
legal scholars, and the role of the judge in the judicial process in almost all Latin
American countries conform very much to the civil-law tradition that evolved in
central and western Europe.
The reception of Spanish law into many Latin American countries—and with
it, Roman law—was not a well-ordered process. After the Spanish conquests,
Spanish law itself became a jumble of codes, legislation, and judicial decisions.
All Spanish law was not consolidated into one collection until 1803 with the
16 A Primer on the Civil-Law Systempublication of a digest, the Nueva Recopilación. The appropriateness of the
application of the earlier “jumble” to the New World was questionable, because
no attempt was made to adapt Spanish law to the exigencies of local situations
or to accommodate it with the conditions and the culture of the various
countries.
While space does not permit commentary on the codes of all the systems of
the twenty-one countries in Central and South America, a review of two of the
systems is important. The codification processes in Chile and Brazil are
significant because of the great influence of the Chilean code on those of many
of other Latin American countries and because of the size and influence of
Brazil generally in Latin American affairs and the uniqueness of its situation as
a former Portuguese colony.
Modern codification processes in Latin American countries did not really
begin until the middle part of the nineteenth century. The process in Chile was
started, in the civil-law tradition, by an inspiring jurist, Andres Bello. This
remarkable individual immigrated from Venezuela in 1829 and, self-taught in
law, became a recognized authority on both Roman and Spanish law, as well as
learned in other scholarly disciplines, including philosophy, languages, and
literature. Within two years of his arrival in Chile—perhaps recognizing the
chaos of the Chilean laws received from Spain—he started drafting, without any
grant of authority, a new civil code for his adopted country.
In 1840, the Chilean legislature created a commission to accomplish that
same purpose—the commission consisted of five members from the two Chilean
legislative bodies. One member of the commission was Bello, who by that time
had been elected to the Chilean Senate. He eventually completed, with but
modest assistance from his legislative colleagues, an entire new civil code that
was given legislative approval in 1856 and went into force in 1857.
The preparation and adoption of the new code in Chile proved to be a
watershed event in South and Central America, as it was adopted almost intact
by Colombia and Ecuador, and was used as a model for the civil codes of
Argentina, Paraguay, Venezuela, El Salvador, and Nicaragua. Even today the
Chilean code and the legal system on which it is based are viewed as the most
advanced and influential among the Spanish-speaking countries of Central and
South America.
Bello, and the commission that sometimes assisted him, drew on a number of
sources for the new Chilean code, of which the most prominent were Roman law
(primarily from the Corpus Juris Civilis), Spanish law (including the Codigo de
Las Siete Partidas and the glosses on that work by later Spanish jurists), the
Code Civil of France, other European civil codes (including those of Prussia and
Austria), and the treatises and scholarly writings of Spanish and French jurists.
One commentator noted the sources of particular parts of the Chilean code:
“[T]he provisions respecting easements are based on the French civil code,
The History and Development of the Civil-Law System 17aqueduct on the Sardinian code, father and children on Spanish law, and
contracts on the works of [French jurist Robert] Pothier.” 6 The Chilean code,
which has undergone major revisions since its mid-nineteenth-century adoption,
primarily by later legislation, still remains in force.
The Portuguese brought law and a legal system to Brazil; however, they were
Portuguese with a Spanish flavor. While Portugal was united with Spain in the
late sixteenth and early seventeenth centuries, Portuguese law underwent a
major revision and recompilation. The result was the Ordinances of Philip II
(1603), comprehensive legislation covering many aspects of private and criminal
law based on Roman law, canon law, customary law, municipal charters and
statutes, and early Portuguese legislation. The Ordinances were received in
Brazil and were a major component of Brazilian private law until a new civil
code was adopted in 1916. The modern codification process began in Brazil in
the mid-nineteenth century with the adoption of a penal code in 1830, a code of
criminal procedure in 1833, a commercial code in 1850, and the new civil code
in 1916.
The Brazilian legal system, for certain cultural and historical reasons, is
characterized by legalism (i.e., the regulation of social relations by legislation)
and formalism (i.e., the insistence on legal formalities, such as authenticity and
verification, for many routine transactions and activities). These two
characteristics, perhaps reflecting the temperament of the Brazilian people, have
resulted in an obsession with legal codes. In addition to the aforementioned
codes dealing with private law, crimes, criminal procedure, and commercial law,
Brazil has, among others, a water code, an air code, a mining code, a health
code, an industrial property code, a telecommunications code, a traffic code, a
tax code, and an electoral code.
The Civil Code of Brazil has been described as the “greatest monument to
legal thought and codification in Latin America.” It is similar in structure to the
German BGB, being divided into three parts that cover (1) general principles,
(2) the law of persons, things, and rights, and (3) the law of family, property,
obligations, and succession. It has been amended by legislation since its
promulgation, primarily in the area of domestic relations, but it is still in force.
The greatest influence on this code’s substantive provisions was the Code Civil
of France. A new penal code, however, reflects the influence of the
contemporary German criminal code.
6. John H. Merryman & David S. Clark, Comparative Law: Western European and Latin
American Legal Systems 213 (1978).
18 A Primer on the Civil-Law SystemThe Development of the Role of Jurists in
Modern Systems
As the legal systems of Europe developed, the evolution of the role of jurists in
the different countries diverged. In particular, the German model became
distinctly different from the French one.
The civil codes, based as they are on the Corpus Juris Civilis, emphasize
form, structure, and the enumeration of both abstract and concrete principles of
law within a unified whole. The reasoning process from code provisions is
deductive—one arrives at conclusions about specific situations from general
principles. The function of the jurists within and for the civil-law system is to
analyze the basic codes and legislation for the formulation of general theories
and extract, enumerate, and expound on the principles of law contained in and to
be derived from them. The jurists apply deductive reasoning to suggest an
appropriate judgment or result in specific cases. Historically their work took the
form of treatises and commentaries that became the “doctrine” used by judges in
their deliberations about specific cases, lawyers for advice to their clients, and
legislators in the preparation of statutes and regulations. One commentator
described the role of doctrine succinctly:
In civil law countries, the treatises and commentaries of legal
writers are generally expressed in systematic expositions and in
discussions about broad legal principles. These works formulate
general theories about basic codes and legislation, in relation to the
evolution of the legal system as a whole. . . . In the civil law, doctrine
is an inherent part of the system and is indispensable to a systematic
and analytical understanding of it. The doctrine is not a recognized
source of law, but it has exercised a great influence in the
development of law. It molds the minds of students, it gives direction
to the work of the practitioners and to the deliberations of judges, and
it guides the legislators towards consistency and systemization.7
One example of the role of jurists in modern civil-law systems is the famous
Brazilian legal scholar, Pontes de Miranda. In the early and middle parts of the
twentieth century, de Miranda wrote many books on Brazilian law that are
referred to in Brazilian judicial opinions and used in the drafting of Brazilian
legislation. His greatest work, Treatise on Private Law, consists of sixty-two
volumes of commentary on the civil code. This monumental exposition is the
basic reference work for Brazilian lawyers, judges, and legislators on subjects
covered in that code.
In the reception of Roman law into Germany and France, the respective
developments in the two countries took different paths, at least as far as the
7. Joseph Dainow, The Civil Law and the Common Law: Some Points of Comparison,
15 Am J. Comp. Law 419, 428 (1966–1967).
The History and Development of the Civil-Law System 19significance of jurists and doctrine is concerned. In Germany the status of jurists
and juridical doctrine, in the manner of Rome, was enhanced, while in France it
was diminished.
One of the reasons for the elevation of the role of jurists in Germany was the
condition of the sixteenth- and seventeenth-century German courts, staffed by
lay judges untrained and unsophisticated in the law. The untrained lay judges
required impartial advice, and this situation, in the manner of the judices in
Rome, led to the practice of the German judges at first merely seeking advice
from the law faculties of the universities, then to asking the law faculties for a
draft of a decree or judgment in a particular case, and ultimately to the practice
of sending an entire file to the professors “for their collective and binding
decision.”
Thus the law professors, the academic jurists in Germany, eventually as-
sumed the role of unofficial and unappointed judges. Their views and opinions
were incorporated into the private law of the state and became the chief vehicle
by which the law was administered. These jurists became the functional
equivalents of the patented jurists in Rome, whose opinions had the “force of
law.” This situation undoubtedly also affected the status of the judicial decision
within the legal system. Since the German professors were writing the decisions
according to their own developed doctrine, there was no need to consult judicial
precedent when confronted with a particular case. Thus legal precedent had no
particular force in the development of the German legal system.
In France, the role and influence of jurists was lessened. The monarchy
encouraged legally trained men into the judiciary. The result was that the
formally trained judges were not compelled to seek outside legal advice in the
manner of their German counterparts. Consequently, French legal scholars and
law professors were never able to achieve the standing and power accorded their
colleagues in Germany. Most of the leading jurists in France were practicing
lawyers and judges. The leading jurists of the pre-Napoleanic period in France,
Charles Dumoulin (1500–1566) and Robert Pothier (1699–1772), were not law
professors. Dumoulin was an advocate and later “consultant,” and Pothier was a
judge for over fifty years of his long professional life. Thus the current French
code is the product of practitioners rather than legal scholars of the German
tradition.
This contrast in the relative influence of German and French jurists can be
illustrated by reference to two appellate cases that are reproduced in Appendix
D, one French and one German.8 Both cases involve an issue of tort liability of
individuals involved in concerted activities. The French decision is cryptic,
containing only about 500 words and citing only two sections of the code and no
doctrinal treatises. The German decision is longer—about 2,000 words—with a
8. These two cases were cited in Merryman & Clark, supra note 6, at 628–36.
20 A Primer on the Civil-Law SystemYou can also read
